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2002 DIGILAW 395 (JK)

Bhartiya Coal Khan v. J&K Minerals Ltd.

2002-12-16

T.S.DOABIA

body2002
Per : Tejinder Singh Doabia, J. 1. Petitioner Union through its President seeks to challenge the office order issued by the respondent-Corporation i.e. Annexure-B with the petition. For facility of reference this is being re-produced below:- Project Allowance and HRA to employees working at Tatapani. Matka and Moghla Mines.Kalakot. The Management has directed to withdraw the project allowance in favour of workers/employees working at Tatapani, Motka and Moghla Mines w.e.f. 1.12.1999. However, the project allowance shall be paid to piece rated workers working at Matka Mine who have been provided with the (sick) at half the rate which was paid earlier till such time the hutments allotted to them are reconditioned and leakages permanently plugged. It has been further decided to release HRA to eligible employees/workers strictly under HRA rules made applicable to the corporation employees. Sd/- Secretary." 2. A perusal of the above communication would make it apparent that the Management has taken a decision to withdraw the allowance in favour of the workers, who are performing their duties at Tatapani, Moghla and Matka Mines. The validity of the afore-mentioned circular is being challenged inter-alia on the ground that all employees working on projects being looked after by the J&K Minerals Ltd. are entitled to compensatory allowance, as envisaged by Rule 25 of the Rules. It is stated that if these benefits were to be withdrawn then the least that was required was that the petitioner Association of the workers concerned should have been heard in the matter. This argument is sought to be countered by the respondents by taking a plea that the service conditions can be challenged in the exercise of power, which is conferred by the very rule on which the reliance is being placed. 3. There is no dispute with the proposition that service conditions can be changed, but if these are to be changed then the procedure indicated in the Industrial Disputes Act of 1947 shall have to be followed. In this regard it would by apt to notice the provisions of Section 9-A of the Act. 3. There is no dispute with the proposition that service conditions can be changed, but if these are to be changed then the procedure indicated in the Industrial Disputes Act of 1947 shall have to be followed. In this regard it would by apt to notice the provisions of Section 9-A of the Act. For facility of reference Section 9-A is being reproduced below:- 9-A. Notice of change: -- No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change:- (a) Without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected: or (b) Within twenty-one days of giving such notice: Provided that notice shall be required for effecting any such change: (a) Where the change is effected in pursuance of any (settlement or award): or (a-b) (b) Where the workman likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Service (Classification, Control and Appeals) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service (Classification, Control and Appeals) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply." 4. A bare reading of the aforementioned provision would indicate that any employer who proposes to effect any change in the condition of service applicable to any workman specified in Schedule IV, then such change can be brought about only after giving notice to the concerned workman. Schedule IV specifically deals with compensatory and other allowances. This Schedule for facility of reference is also, Being reproduced below:- THE FOURTH SCHEDULE� Conditions of service for change of which notice is to be given. 1. Wages, including the period and mode of payment; 2. Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force; 3. Compensatory and other allowances; 4. Hours of work and rest intervals; 5. Leave with wages and holidays; 6. Starting, alteration or discontinuance of shift working otherwise than in accordance with standing orders; 7. Classification by grades; 8. Compensatory and other allowances; 4. Hours of work and rest intervals; 5. Leave with wages and holidays; 6. Starting, alteration or discontinuance of shift working otherwise than in accordance with standing orders; 7. Classification by grades; 8. Withdrawal of any customary concession or privilege or change in usage; 9. Introduction of new rules of discipline or alteration of existing, rules except in so far as they provided is standing orders; 10. Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen; 11. Any increases or reduction other than casual In the number of persons employed or to be employed in any occupation or process or department or shift, (not occasioned by circumstances over which the employer has no control)." 5. The provisions of Section 9A. referred to above, stand interpreted by the Supreme Court of India and also by various High Courts. The object of this Section is to prevent a unilateral action on the part of the employer changing the conditions of service to the prejudice of the workmen. The purpose behind this is to afford an opportunity to the workmen to consider the effect of the proposed change and, if necessary, to present their point of view on the proposal. This Section was enacted with a view to protect the interests of workmen who may be affected by a proposed change by the employer. 6. In Calcutta Electric Supply Corporation Ltd. v. Calcutta Electric Supply Workers Union, (1995) I LLJ 874, the employer-company had a scheme of giving medical benefits to its employees which was withdrawn after coming into operation of the employees State Insurance Act, 1948 on the ground that the medical benefits under the Act were more generous. The employees disputed this decision of the management on the ground of contravention of the provisions of Section 9A of the Act. The Industrial Tribunal held that the change effected by the management was in contravention of Section 9A because it was not entitled to withdraw the medical benefits which were already in existence before the Act came into force. In appeal against the award of the Tribunal, the Supreme Court held that the contention of the employer that the benefits available under the Act were more beneficial was factually not correct. In appeal against the award of the Tribunal, the Supreme Court held that the contention of the employer that the benefits available under the Act were more beneficial was factually not correct. Apart form that, the Court further held that there was nothing in the Act or the Regulations framed there under which enables the employer to withdraw the pre-existing benefits merely because the employees came to be covered by that Act. In State Bank of India Staff Union v. Chairman State Bank of India, 1992 Lab.I.C 2078, under the Regulation framed by the Bank, a member of the Award Staff (Clerical) was given the right to contest elections to the State Assemblies and local bodies subject to certain conditions contained in a circular. Subsequently, the Bank sought to withdraw this right which was contested by the Staff Union of the Bank. A Division-Bench of the Andhra Pradesh High Court held that the withdrawal of this concession to contest the elections was not only infringement of provisions of Section 9A, but also was violative of the rules of natural justice. 7. Again in Tata Iron and Steel Co. Ltd., (1972) II L.L.J 259, the weekly off-days were temporarily changed from Sunday Wednesday in one colliery of the employer company and to Thursday in the other, on account of shortage of power supply, in view of the emergency of the situation, a notice as contemplated by Section 9 A was not possible. Even in these circumstances the Supreme Court of India held that each one of the items 4, 5 and 8 of the Fourth Schedule, viz. `hours of work and rest intervals; `leave with wages and holidays and `withdrawal of customary concession or privilege or change in usage was wide enough to cover the weekly off-days. It was observed that fixation of Sundays as weekly off-days was founded on `usage and was treated as `customary privilege hence any change in such weekly holidays would fall within the expression `change in usage or `customary privilege as Sundays as a weekly rest-day had assumed importance for workmen `due to long usage and other factors. Hence, it was necessary to give the notice as contemplated by Section 9A for effecting a change in the weekly rest from Sunday to some other day. 8. Hence, it was necessary to give the notice as contemplated by Section 9A for effecting a change in the weekly rest from Sunday to some other day. 8. In Management of India Oil Corporation Ltd. v. Its Workmen, (1975) II LLJ 319 employer company had withdrawn a compensatory allowance payable to its workmen on the line of such allowance `previously introduced by the Central Government posted throughout Assam as it thought that rules of the Central Government was not binding on it. This allowance was withdrawn unilaterally without giving any notice to the workers. In the circumstances of the case, it was held that the compensatory provision was undoubtedly an implied condition of service so as to attract the mandatory provisions of Section 9-A. 9. The aforementioned decisions clearly lays down that if condition of service which are enumerated under Schedule Fourth are to be changed then notice in terms of 9-A is required to be given. 10. As compensatory and other allowances are dealt with in IV Schedule and this requires giving of notice to the workmen and as this exercise was not gone into by the respondent-employer, this petition is disposed of with the direction that order dated 2.12.1999 shall not be given effect to so far as any workman is affected by this order and if any change is to be brought is concerned, then it be done following the provisions contained in Section 9A of the Act. No doubt the rule in question does indicate that a change can be brought about by the officers mentioned in that rule but that rule would be subject to the conditions which requires to be fulfilled in accordance with Section 9A of the Act. Petition disposed of as such.